20010404 Ver 3_Certified Return Receipt_20070711

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DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON. NORTH CAROLINA 28402-1890 All
REPLY TO
ATTENTION OF:
July 3, 2007
Regulatory Division t?jay°F 1 d
Action ID 1993-00570, US 1 Improvements, Moore/Lee Counties, North Carolina, State Number 8.T560302, TIP No. R-210A.
Dr. Gregory J. Thorpe, PhD, Manager
Project Development and Environmental Analysis Branch
North Carolina Department of Transportation
1548 Mail Service Center
Raleigh, North Carolina 27699-1548
Dear Dr. Thorpe:
This letter is a follow up to a permit compliance inspection conducted by Mr. Richard K.
Spencer on 17 May 2006, at the above referenced highway improvement project. During the
inspection of the mitigation site at R-210C sites 4&5, centerline station 28+75 through 31+50,
we observed that the North Carolina Department of Transportation (NCDOT) had constructed
two "special swales with rip-rap berms" impacting the mitigation site. Because of the
construction of these structures within the mitigation site, NCDOT is in violation of the above
referenced project Department of the Army Permit, Special Conditions Number 2.a.ii, 2.b.iv,
2.b.viii, 13, 18 and 19. It is our responsibility to enforce the conditions of the Clean Water Act
Department of the Army Permit.
A review of Wilmington District records indicates that these activities have not been
authorized by the U.S. Army Corps of Engineers. The identified unauthorized work within the
mitigation site consists of mechanized grading and the deposition of approximately 30 cubic
yards of class 3 rip-rap for the construction of two "special swales," impacting approximately
0.03 acres of mitigation site, which included wetlands and stream channel. Accordingly, we
request that you cease and desist from further unauthorized activities on this project.
Special Condition 2.b.viii specifically states that "The permittee and/or current and
subsequent property owners shall maintain the mitigation site in its natural condition, as altered
by work in the mitigation plan, in perpetuity. Prohibited activities within the mitigation site
specifically include, but are not limited to: the construction or placement of roads, walkways,
buildings, signs, or structures of any kind (i.e., billboards, interior fences, etc.); filling, grading,
excavation, leveling, or any other earth moving activity or activity that may alter the drainage
patterns on the property, the cutting, mowing, destruction, removal, or other damage of any
vegetation; disposal or storage of any debris, trash, garbage, or other waste material; except as
may be authorized by the mitigation plans, or subsequent modifications that are approved by the
Corps of Engineers. In addition, the permittee shall take no action, whether on or off the
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RETURN RECEIPT REQUESTED
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mitigation property, which will adversely impact the wetlands or streams on the mitigation
property, except as specifically authorized by this permit, or subsequent modifications that are
approved by the Corps of Engineers, Wilmington District." Furthermore, Special Condition
2.b.iv. stipulates that a 50 foot wide vegetated buffer on the relocated channel would be
established, which is also a part of the mitigation site. Because of the unauthorized work, the
entire mitigation site is no longer considered a viable mitigation site, violating the requirement of
Special Condition 2.a.ii requiring 980 linear feet of stream mitigation. These structures will also
result in the dis-equilibrium of hydrology in the wetlands, streambed and banks and the
impairment of the surface water flow into and out of the wetlands and stream channel violating
Special Conditions 13 and 18, respectively.
Finally, NCDOT was required, by Special Condition 19, to maintain the authorized work in
good condition and in conformance with the terms and conditions of the aforementioned permit.
The permittee is not relieved of this requirement even if he abandons the permitted activity
without transferring it to a third party.
Therefore, due to the nature of the violation and considering that the property in question
was a mitigation site established to offset the impacts of the highway improvement project, the
following corrective actions should be initiated by NCDOT immediately upon receipt of this
letter in order to bring the project into compliance.
1. A scope of work for the removal of the unauthorized structures and complete
restoration of the mitigation site shall be submitted to this office within 30 days of
receipt of this letter. The scope of work shall include a plan indicating the methods
to be used to remove the rip-rap portions of the structure and restoration of pre-
disturbed contours. The scope of work shall include a plan for controlling sediment
and erosion within the work area so that there is not an appreciable release of
sediment to the down gradient receiving waters and that any discharge of dredged
material will meet the State of North Carolina's effluent standards. The scope of
work shall include the restoration of vegetation that was present before the
unauthorized construction and a work schedule for completion of each phase of the
work. The work schedule shall also include the timing for the removal of all
erosion and sediment control measure and a five year monitoring plan to commence
upon completion of the restoration project. The scope of work shall also include an
as-built plan of the restoration, including wetlands and buffer. The steam channel
survey should match the as-built channel survey plan for the original mitigation site
as required by Special Condition 2.b.ii. No work shall be undertaken until the
Corps of Engineers has approved the restoration scope of work and schedule.
2. All sediment and erosion control measures placed in the mitigation site shall be
removed, and natural grades in those areas shall be restored prior to project
completion.
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3. Mitigation for 100 linear feet of disturbed stream channel and 0.03 acres of
disturbed wetlands that have occurred as a result of the unauthorized activity shall
be provided by payment to the North Carolina Ecosystem Enhancement Program
(NCEEP) in an amount determined by the NCEEP sufficient to perform 200 linear
feet of warm water stream and 0.06 acres of riparian wetlands mitigation in the
Cape Fear River Basin. The NCDOT shall, within 30 days of the issue date of this
letter, certify that sufficient funds have been provided to EEP to complete the
required mitigation.
Your prompt attention and response to the issues identified in this letter is required and we
request that you confirm your intentions regarding this matter within 10 days after receiving this
letter. If after receiving this cease and desist order, you fail to act on the matters as prescribed
above to resolve the non-compliance issue, I may seek immediate legal action. Additionally,
administrative penalties are being considered against you for your failure to comply with the
conditions of the issued Department of the Army permit.
Should you have any questions or wish to discuss this matter further, please contact
Richard K. Spencer at the Wilmington Field Office, Regulatory Division, at telephone (910) 251-
4172.
Sincerely,
S. Kenneth Jolly
Chief, Regulatory Division
Copies furnished:
L. A. Sanderson, PE
North Carolina Department of Transportation
1548 Mail Service Center
Raleigh, North Carolina 27699-1548
Mr. John Hennessy
North Carolina Dept. of Environment & Natural Resources
Div. of Water Quality
Mail Service Center 1650
Raleigh, North Carolina 27699-1650
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Mr. Brian Wrenn
North Carolina Dept. of Environment & Natural Resources
Div. of Water Quality
Mail Service Center 1650
Raleigh, North Carolina 27699-1650
Mr. Ken Averette
North Carolina Dept. of Environment & Natural Resources
Div. of Water Quality
225 Green Street, Suite 714
Fayetteville NC 28115
Mr. Art King
Division Environmental Officer
North Carolina Department of Transportation, Division 8
P.O. Box 1067
Aberdeen, North Carolina 28315-1067
Mr. Tim Johnson, PE
Division Engineer
North Carolina Department of Transportation, Division 8
P.O. Box 1067
Aberdeen, North Carolina 28315-1067
µ A?o?
MICHAEL F. EASLEY
GOVERNOR
April 9, 2007
Mr. Paul Rawls
Chief, Surface Water Protection Section
North Carolina Division of Water Quality
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
Dear Mr. Rawls:
LYNDO TIPPETT
SECRETARY
This is to let you know that NCDOT forces will begin work on April 10, 2007 to carry out the
work that is listed in the attached addendum to the settlement agreement for R-210. Also, as
mentioned in the attached addendum, work will be completed by October 13, 2007.
State Highway Administrator Bill Rosser has delegated the authority to me to execute the
attached addendum to the R-210 settlement agreement for the Department. If you have any
questions, please contact me.
Sincerely,
4-0? da'4-'a'
Deborah M. Barbour, PE
Director of Preconstruction
DMB
cc w/attachment
STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
Bill Rosser, PE
Steve Varnedoe, PE
Art McMillan, PE
Greg Thorpe, Ph.D.
Tim Johnson, PE
Dave Henderson, PE
Don Lee
Lisa Glover
MAILING ADDRESS:
NC DEPARTMENT OF TRANSPORTATION
PRECONSTRUCTION SECTION
1541 MAIL SERVICE CENTER
RALEIGH NC 27699-1541
TELEPHONE: [phone]
FAX: [phone]
WEBSITE. WWW.DOH.DOT.STATE.NC.US
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APR 2 5 2007
DES"' , WATER QUALITY
SURFACE WATER PROTECTION SECTION
LOCATION:
TRANSPORTATION BUILDING
1 SOUTH WILMINGTON STREET
RALEIGH NC